Mawbey, R (On the Application Of) & Orsv Cornerstone Telecommunications Infrastructure Ltd.

Under Class A of Part 16 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015, a “mast” is an upright pole or lattice-work structure whose function is to support an antenna or aerial. It may be ground-based or building-based and need not have any minimum height, scale or particular design.

For paragraph A.1(2)(c), the authority must determine whether the structure performs that supporting function, whether the building is less than 15 metres high and whether the structure is within 20 metres of the highway. The mast’s own height is irrelevant. Industry guidance cannot restrict the statutory definition.

Cornerstone Telecommunications Infrastructure Ltd installed nine antennae on supporting poles on the roof of a block of flats less than 15 metres high and within 20 metres of a highway. The London Borough of Lewisham determined that the apparatus was permitted development because the support poles were not ground-based and their scale and design were not characteristic of a roof mast.

On Mr Mawbey’s judicial review claim, Lang J quashed that determination in [2018] EWHC 263 (Admin). She held that the council had misunderstood the definition of “mast” in Class A of Part 16 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015.

Cornerstone appealed. The central question was whether the support poles were capable of being “masts” for the exclusion from permitted development in paragraph A.1(2)(c).

1. Appeal dismissed. The council’s determination had been based on an erroneous construction of paragraph A.1(2)(c) and paragraph A.4 of Part 16 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015. That error of law was fatal to its decision.

2. Provisions of the development order are construed by ascertaining the ordinary meaning of their language in a broad and common-sense manner. Common words ordinarily bear their common meaning unless the legislative context clearly indicates otherwise. Dictionaries may properly assist where there is genuine doubt about ordinary meaning.

3. A “mast” in this legislative context is an upright pole or lattice-work structure whose function is to support an antenna or aerial. The definition applies throughout Class A. It does not require the structure to be ground-based or to possess any specified minimum height, scale or design. A relatively short pole on a building can therefore be a mast.

4. Nothing in the surrounding provisions displaced that ordinary meaning. References to antenna support structures and other supporting apparatus cover structures attached to a mast or support apparatus which is not itself a mast. Paragraph A.5 extends an existing permission to ancillary items such as mountings, fixings, brackets and similar support structures. It does not remove primary supporting poles from the statutory definition of electronic communications apparatus.

5. The non-statutory Code of Best Practice could not impose its narrower industry classifications of mast, pole mount and stub mast on the development order. Using those definitions would impermissibly rewrite the legislation.

6. Under paragraph A.1(2)(c), the authority must determine, as matters of fact and degree, whether the apparatus is an upright pole or other qualifying structure whose function is to support an antenna or aerial, whether the building is less than 15 metres high, and whether the structure is within 20 metres of the highway. The apparatus’s own height is not relevant. The council had instead relied on irrelevant considerations concerning ground-basing, scale and design.

7. Lang J had been entitled to quash the decision. However, whether each central support pole was in fact a mast remained for the council, applying the correct legal definition, rather than the court. The council was required to reconsider the matter.

1. Court of Appeal (Civil Division): Dismissed Cornerstone’s appeal in [2019] EWCA Civ 1016. The council’s determination remained quashed and the matter was left for reconsideration under the correct legal test.
2. Administrative Court, Planning Court: Lang J allowed the judicial review claim and quashed the council’s determination that the apparatus was permitted development: [2018] EWHC 263 (Admin).